I have been reading all sorts of items about the impeachment trial. While waiting for a case to start I actually watched the senators sign the book affirming their oaths as jurors. Most of the commentariat and Democrats are chattering about whether the trial will be fair. Well, what is 'fair' in the context of a trial?
I hear that word three ways. One meaning is impartial- each side gets a chance to present its case. Another meaning is favorable- the side that gets its way is being treated 'fairly' while the other side claims there is bias. The last way I hear it is its meaning on the playground- I'm not getting my way, as in "hey! No fair!" Like everything else that is learned in kindergarten, it is this last meaning which is really the driver here, even as each party tries to claim it means the first.
I have previously said that our political parties are like two men fighting in the mud, each claiming he is clean and his opponent dirty. The same applies to the impeachment trial. The heart of the argument is whether there will be witnesses. Each side wants its own witnesses while excluding the other side's. Democrats want to hear from John Bolton and Rudy Giuliani, among others. Republicans want to hear from Hunter Biden. What about rules regarding this? Are there any?
The answer is 'no'. The Senate makes its own rules. It can change the rules as well, so that precedent applies only insofar as the Senate wants it to. Clinton's trial is being used as a model, which is not unreasonable. Managers presented their case, there was a defense, senators got to ask questions, and then witnesses as necessary were called. While this seems like an acceptable format it is going to make trouble this time.
There is a central problem in the Democrats' case. They failed to investigate completely. The impeachment process started not with an enabling resolution but in the intelligence committee. There was immediate protest because, unlike the House or the judiciary committee, the intelligence committee's meetings can be secret. In this setting Trump refused all subpoenas of White House staff, asserting privilege over their testimony and actions. In response, the House took an enabling vote and sent the impeachment question to the judiciary committee, where it belonged in the first place.
Disagreements between branches of government are supposed to be resolved by SCOTUS. Democrats did not go to SCOTUS to compel their subpoenas, however. Instead, they drafted one article of impeachment for obstruction of Congress, claiming Trump's refusal was itself obstructive. Those favoring that approach note the SCOTUS decision in the Nixon Watergate tapes investigation, where it was ruled that legitimate congressional investigative duties supersede executive privilege. Trump didn't argue that, however; he argued that the congressional subpoena was too broad and served no legitimate purpose, this supported by the lack of impeachment authorization and that use of the intelligence committee.
Rather than have their witnesses during the investigation, Democrats now want them at trial. In any civil or criminal proceeding this would be shot down instantly. When a case is brought the defense knows who will testify and what their testimony will be, via discovery and depositions. The case is not developed 'on the fly' via witnesses. Unlike the movies, real courts don't have jack-in-the-box, gotcha moments. Despite this procedural reality, if Republicans refuse to have witnesses it will look like they are trying to suppress evidence. The Republican interest in witnesses appears to be to establish that Trump had a legitimate reason to ask for investigation of Hunter Biden, that he was not attacking a political rival. Of course, there is more to their request as well. Getting Hunter Biden on the stand would be horribly embarrassing for his father and Democrats in general. Both sides are still grappling in the mud, trying to gain political points on the other. For all the difference it makes, the Democrats should be crying 'No fair! Mooooom' and the Republicans leering and saying 'nyah nyah na nyah nyah'.
Lost in all this are the factual questions. Was Trump trying to get dirt on a rival? Did Zelensky feel threatened? What conversations and planning took place prior to the phone call? What was Hunter Biden doing at Burisma?
I have sympathy for the Democrats' claims that constitutional power balance is being destroyed. Well, you finally woke up! That power balance has tilted decisively away from Congress over the last 15-20 years as Congress has been more and more obstipated in political gamesmanship. Trump is no more guilty than Obama or Bush 2, just more overt. I also have sympathy for the Republicans' claims. Democrats have openly called for impeachment since Trump was elected. The case looks as manufactured as Kraft processed cheese food.
Absent some startling revelation, Trump is going to be acquitted by the Senate. The real jury are American voters. Everyone knows that, too. Democrats have tried and tried to discredit Trump- releasing tape during the campaign, attacking Kavanaugh, the Mueller report, now impeachment. It's a big gamble, but I see no other option for them except to play out the game they started. If I were they, however, I would fear the response when Trump, like Iron Man, gets to say "My turn....."
In short, this is not a conventional trial. The jury gets to make up the rules, the investigation was half-assed, and nothing in life is fair. You came to court with a weak case in front of a hostile jury. Now you are highly likely to take your lumps....
Ted
I hear that word three ways. One meaning is impartial- each side gets a chance to present its case. Another meaning is favorable- the side that gets its way is being treated 'fairly' while the other side claims there is bias. The last way I hear it is its meaning on the playground- I'm not getting my way, as in "hey! No fair!" Like everything else that is learned in kindergarten, it is this last meaning which is really the driver here, even as each party tries to claim it means the first.
I have previously said that our political parties are like two men fighting in the mud, each claiming he is clean and his opponent dirty. The same applies to the impeachment trial. The heart of the argument is whether there will be witnesses. Each side wants its own witnesses while excluding the other side's. Democrats want to hear from John Bolton and Rudy Giuliani, among others. Republicans want to hear from Hunter Biden. What about rules regarding this? Are there any?
The answer is 'no'. The Senate makes its own rules. It can change the rules as well, so that precedent applies only insofar as the Senate wants it to. Clinton's trial is being used as a model, which is not unreasonable. Managers presented their case, there was a defense, senators got to ask questions, and then witnesses as necessary were called. While this seems like an acceptable format it is going to make trouble this time.
There is a central problem in the Democrats' case. They failed to investigate completely. The impeachment process started not with an enabling resolution but in the intelligence committee. There was immediate protest because, unlike the House or the judiciary committee, the intelligence committee's meetings can be secret. In this setting Trump refused all subpoenas of White House staff, asserting privilege over their testimony and actions. In response, the House took an enabling vote and sent the impeachment question to the judiciary committee, where it belonged in the first place.
Disagreements between branches of government are supposed to be resolved by SCOTUS. Democrats did not go to SCOTUS to compel their subpoenas, however. Instead, they drafted one article of impeachment for obstruction of Congress, claiming Trump's refusal was itself obstructive. Those favoring that approach note the SCOTUS decision in the Nixon Watergate tapes investigation, where it was ruled that legitimate congressional investigative duties supersede executive privilege. Trump didn't argue that, however; he argued that the congressional subpoena was too broad and served no legitimate purpose, this supported by the lack of impeachment authorization and that use of the intelligence committee.
Rather than have their witnesses during the investigation, Democrats now want them at trial. In any civil or criminal proceeding this would be shot down instantly. When a case is brought the defense knows who will testify and what their testimony will be, via discovery and depositions. The case is not developed 'on the fly' via witnesses. Unlike the movies, real courts don't have jack-in-the-box, gotcha moments. Despite this procedural reality, if Republicans refuse to have witnesses it will look like they are trying to suppress evidence. The Republican interest in witnesses appears to be to establish that Trump had a legitimate reason to ask for investigation of Hunter Biden, that he was not attacking a political rival. Of course, there is more to their request as well. Getting Hunter Biden on the stand would be horribly embarrassing for his father and Democrats in general. Both sides are still grappling in the mud, trying to gain political points on the other. For all the difference it makes, the Democrats should be crying 'No fair! Mooooom' and the Republicans leering and saying 'nyah nyah na nyah nyah'.
Lost in all this are the factual questions. Was Trump trying to get dirt on a rival? Did Zelensky feel threatened? What conversations and planning took place prior to the phone call? What was Hunter Biden doing at Burisma?
I have sympathy for the Democrats' claims that constitutional power balance is being destroyed. Well, you finally woke up! That power balance has tilted decisively away from Congress over the last 15-20 years as Congress has been more and more obstipated in political gamesmanship. Trump is no more guilty than Obama or Bush 2, just more overt. I also have sympathy for the Republicans' claims. Democrats have openly called for impeachment since Trump was elected. The case looks as manufactured as Kraft processed cheese food.
Absent some startling revelation, Trump is going to be acquitted by the Senate. The real jury are American voters. Everyone knows that, too. Democrats have tried and tried to discredit Trump- releasing tape during the campaign, attacking Kavanaugh, the Mueller report, now impeachment. It's a big gamble, but I see no other option for them except to play out the game they started. If I were they, however, I would fear the response when Trump, like Iron Man, gets to say "My turn....."
In short, this is not a conventional trial. The jury gets to make up the rules, the investigation was half-assed, and nothing in life is fair. You came to court with a weak case in front of a hostile jury. Now you are highly likely to take your lumps....
Ted
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